7 Cal. 455 | Cal. | 1857
Lead Opinion
delivered the opinion of the Court—Murray, C. J., concurring.
This is an action instituted by the plaintiff, who is a married woman, and sole trader under the act of 1852, to recover the value of certain goods seized by defendant, under an execution against Samuel G-uttman, the husband of plaintiff.
It appears that Samuel G-uttman was engaged in the manufacture and sale of clothing; that he became involved, and that
The Court below found the value of the goods to be one thousand six hundred and fifty dollars; that the sum of six hundred and fifty dollars, the amount received from the boarding-house, was liable for the husband’s debts; and gave judgment for the sum of one thousand dollars, and from this judgment the defendant appeals.
It is contended, that inasmuch as this action does not concern the separate property of the wife, the husband should have been joined as plaintiff. This point is not well taken. The act of April, 1852, vests in the married woman, who avails herself of its provisions, the exclusive ownership and control of all the money and property invested in the trade, or business in which she is engaged, and as to such business, and the property invested, she is entirely independent of her husband. See McKune v. McGarvey, October Term, 1856.
It is also contended that the act was designed to permit a married woman to invest only her separate property, in some business not unsuited to her sex. That it should not be so construed as to enable her to embark in business on capital furnished by her husband, or to pursue the same trade in which he was engaged; as such construction would afford to a debtor great facilities to defeat the claims of his creditors, by transferring his property, and avoiding the payment of his debts, while continuing business in the name of his wife.
We do not think the Legislature intended to limit the provisions of the act to those women who were so fortunate as to be possessed of separate property; they designed to afford to every married woman an opportunity of providing against the improvidence or misfortunes of her husband, by engaging in any legitimate calling, by protecting her earnings against her husband and his creditors, and enabling her, by her own energy and industry, to support herself and children.
So far from forbidding, the law, by the plainest implication, intends that the capital invested, to the extent of five thousand dollars, may be furnished by the husband. If the husband were at the time in embarrassed circumstances, such transfer would amount to a Maud upon his creditors, and therefore be void as to them, but would, we think, be good against all others. In this case, however, the question does not properly arise, as the money furnished by the. husband was deducted from the judgment of the Court below.
The fact that the trade or business was unsuited to her sex, or that the husband was employed in it, would be circumstances tending to establish fraud, but would not amount to conclusive evidence of its existence.
These facts were before the Court below, and the question of fraud raised by the pleadings was decided in favor of the plaintiff.
The business was certainly not unsuited to the sex or capacity of plaintiff; it was one of the few occupations offering a promise of remuneration, in which a woman "can with propriety engage, and though we may object to the employment of the husband by his wife, as tending to impair his dignity and authority, as the head of a family, it certainly is no reason for depriving the plaintiff of her rights under the law.
The judgment of the Court below is affirmed, with costs.
Dissenting Opinion
The principles involved in this case are, in my view, very important, and as I am compelled to dissent from the opinion of my associates, I will proceed to state my reasons.
A very important question raised and decided in the Court below, was whether the capital invested must be the separate property of the wife, or may be the property of the husband, when the amount does not exceed the sum of five thousand dollars, even conceding that the husband is indebted to others at the time the capital is furnished by him. The laws of this State exempting the homestead from forced sale, and a large amount of other property, and securing to the wife her separate property, giving her also one-half of the community property upon the death of the husband, and denying the husband the right to dispose of her portion of the common property by will, as this Court has held in the case of Beard v. Knox, (July Term, 1855,) are perhaps, when taken together, more liberal to families than the laws of any other State in the Union. The rights of honest creditors are more restricted here than elsewhere, and after having made these large reservations for the wife and family of the judgment-debtor, an intention to increase these reservations ought to be very explicitly and plainly expressed, before a Court would be justified in arriving at such a conclusion.
There is'nothing in the act of 1852, that expressly says that the money invested in the business of the wife, may be composed of the property of the husband, and if so, shall be protected from his creditors. Taking the different statutes together, there would seem to be no great difficulty in understanding the intention of the Legislature. Under the act of
The defendant objects to the judgment of the Court below, as well as the finding of the Judge, sitting as a jury, -upon the ground that there were conclusive evidences of fraud oh the part of husband and wife, and the finding and judgment should have been for defendant.
The act of 1852, as before remarked, was intended to carry out the benevolent provisions of the Constitution, by giving to the wife that use of her separate property which is naturally incident to its ownership. But it never was the design of that act to provide ways and means for the commission of frauds
That this statute has-been greatly abused, and often perverted from its benevolent intent, there can be no question; and that it is the duty of the Courts to carry out its provisions, and at the same time to carefully prevent these abuses, would seem equally clear. If the Courts permit these great abuses to exist, then the statute becomes an instrument of evil, instead of good, and the ultimate and inevitable result must be, that the law itself will either become odious to the community, or the community itself will be more or less demoralized. Since the passage of the act, in 1852, the public prints have teemed with notices, on the part of married women, that they intended to carry on business in their own names; and the different kinds of business specified have included stock-raising, farming, blacksmithing, carpentering, brick-making, and almost all other kinds of business that are carried on most generally by men, and are, in their nature, unsuitable to the capacity, education, and position of females; and in many cases, the ostensible business of the wife was but a continuation of that of the husband, and a business not adapted to her capacity or position, but especially suited to his; and in most such cases, he is found conducting the business under the alleged capacity of agent of his own wife. Under such circumstances, it would seem to be the duty of the Courts to guard against these perversions of the law, not only in justice to the wronged and injured creditor, but in support of public morals and the best humanity ; for if these monstrous abuses are not checked, the practice of married women doing business on them own account will become so disreputable, that decent females will suffer any privation before they will incur the odium of engaging in such a
In the present case, it was shown that the husband of plaintiff had been engaged in the manufacture and sale of ready-made clothing; that a tailor employed by him had sued for his wages, obtained judgment and execution, under which the stock of the husband was sold out; that in a short time the wife was carrying on the same business, employing the same workman, and her husband acting as her agent, and that the capital on which the plaintiff commenced business was composed of six hundred and fifty dollars, the property of the husband, and two hundred dollars which she borrowed upon her own account. The plaintiff, before the failure of her husband, had done her own housework; had kept several boarders, her husband paying the rents and expenses of the establishment; and this six hundred and fifty dollars had been laid by, from time to time, by plaintiff, as she received the same in different sums from the boarders. The Court below very properly decided that the six hundred and fifty dollars was the money of the husband, as our statute had expressly so provided.
The combined circumstances of this case would seem to amount to full proof of fraud, and we think the Court below should have so found. The fact that the former business of the husband is continued and conducted by him as alleged agent of his wife, is a circumstance so pregnant with suspicion, that it should be held as conclusive evidence of fraud. The husband should not be permitted to act as the agent of his wife. Our statute holds the possession of personal property by the seller, after sale, as conclusive evidence of fraud, and this rule has ever been considered, by the wisest and most humane Judges, as the best practical rule, because it provides a simple and efficient check, and thus removes the opportunity and temptation to do wrong. And a rule equally plain and practical should be applied in the case of feme sole traders. If the husband wishes to do business suited to his own capacity, let him do it upon his own capital and in his own name, and if he cannot do this, and is compelled to enter the employment of others, let him obtain employment from some one else than his wife. Honest and fair industry, combined with prudent economy, never did fail in our country, and the more strictly parties are held to these necessary traits of character, the better for them and for the community at large.
